THE EUROPEAN COURT OF HUMAN RIGHTS
CASE OF CHUKAYEV v. RUSSIA
(Application no. 36814/06)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Chukayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Wampach, Deputy Section Registrar,
Having deliberated in private on 13 October 2015,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 36814/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Shaukhat Galimovich Chukayev (“the applicant”), on 11 July 2006.
- The applicant, who had been granted legal aid, was represented by Mrs V.A. Bokareva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
- The applicant alleged, in particular, that he (i) had been detained in inhuman and degrading conditions on remand, (ii) had not been provided with a lawyer after his arrest, (iii) had been ordered to pay legal aid fees, and (iv) had not been able to question a witness against him. He also maintained that the Russian authorities had hindered the exercise of his right of individual petition to the Court.
- On 10 February 2012 the application was communicated to the Government.
- The applicant is a Russian national who was born in 1960 and lived before his arrest in Vatazhnoe, a village in the Astrakhan region.
- The circumstances of the case
- Criminal proceedings against the applicant
- Covert operation
- On or around 22 December 2003 the applicant sold drugs to B. and O.
- On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a police officer taking part in an undercover operation.
- In March 2004 the Voronezh branch of the Federal Drug Control Service (“FSKN”) instituted criminal proceedings against B. and O. When questioned they submitted that they had purchased drugs from the applicant, who lived in Astrakhan.
- On 20 May 2004 the FSKN instituted criminal proceedings against the applicant and ordered a “test purchase” from him, to be carried out with the help of B. and two undercover police officers, Sh. and P.
- The covert operation took place between 3 and 5 June 2004 in a hotel in Astrakhan, where Sh. had booked a room. Audio recording devices were installed in the room and the hotel was placed under surveillance. The applicant alleged that during the operation the police had poisoned him with an unknown substance, which had resulted in him being admitted to a prison hospital.
- The applicant’s arrest, personal search and questioning as a suspect
- According to the arrest record drafted at 3.30 p.m. on 5 June 2004, police arrested the applicant in the hallway of the eighth floor of the hotel on the grounds that “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence”. The record also indicated that immediately after his arrest the applicant had been apprised of his right to be assisted by counsel and that he had been searched. The search and its results were described as follows:
“…Mr Chukayev was asked to hand over of his own free will any powerful narcotic substances… he had been keeping on himself unlawfully, money acquired illegally… In reply to the investigator’s request, Mr Chukayev explained that he had none of those things except money, which he had made illegally from selling a narcotic substance, heroin, in a quantity of approximately 38 – 50 grams. He also explained that the money he had made illegally was in his bag, and submitted that he wished to give it [to the investigator] of his own free will. As a result of the personal search, Mr Chukayev took the money out of his bag voluntarily…”
- According to the applicant, investigator L. refused to provide him with a lawyer immediately after his arrest on the grounds that no investigating activities were being carried out in respect of him, therefore he did not need a lawyer. The applicant also stated that he had not been questioned on the day of his arrest.
- According to the arrest record, which he had signed, the applicant had made no comments concerning its contents or any other matters, and his wife had been notified of his arrest over the telephone.
- Following the personal search, the investigator seized other money found in his pockets along with his identity papers, mobile phone and some other items. The personal search was photographed.
- On the same day the investigator ordered fingerprint and palm print chemical expert reports. The applicant’s fingerprints and palm prints were taken. The applicant alleged that he had not been informed of the request for these reports or their results. He had only learnt of the expert analyses while reviewing the criminal case file in March 2005.
- On 6 June 2004 the investigator started questioning the applicant as a suspect. According to the interrogation report, lawyer Or. was present during questioning. The applicant alleged that he had refused to give a statement for health reasons, whereas the interrogation report stated that he had invoked his right not to incriminate himself and refused to testify. According to the interrogation report, which he had signed, the applicant had no comments concerning its contents or any other matters.
- The applicant’s placement in detention and the charges against him
- On 6 June 2004 the Kirovskiy District Court of Astrakhan (“the District Court”) remanded the applicant in custody. He alleged that counsel Or. had not represented him properly at that hearing. His detention was extended on several subsequent occasions. He remained in detention until his conviction on 14 October 2005.
- On 11 June 2004 the applicant was charged with drug offences and questioned in the presence of counsel I. It is apparent from the record of that interview duly signed by him that he had understood the charges against him and denied all of them. He refused to make a statement.
- On 16 August 2004 new charges were brought against the applicant in the presence of his counsel. He was charged with two counts of drug trafficking, namely unlawfully acquiring, transporting and possessing drugs with intent to sell, and selling drugs to B. and O. in December 2003 and Sh. on 5 June 2004.
- Return of the case to the prosecution
- On 17 February 2005 the District Court returned the criminal case to the prosecutor because the applicant had not had sufficient time to review the criminal case file. In March 2005 he finished doing so.
- The trial and the applicant’s conviction for drug offences
- The trial took place in the District Court between April and October 2005. The applicant was represented by counsel M. and I. The court heard him and several witnesses, and examined the pre-trial statements of absent witnesses as well as physical evidence.
(a) The applicant’s testimony
- The applicant denied all the charges against him. He testified, in particular, that he had met B. in November 2003 and had helped him to buy fish wholesale. On 5 June 2004 they had met because B. had brought some money he had owed him and had wanted to arrange another purchase of fish from him with Sh.
(b) Witness statements in court as to the first set of charges
- During the examination of the first set of charges against the applicant, namely unlawfully acquiring and possessing drugs and selling drugs to B. and O. in December 2003, the District Court heard, and the applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.
(i) Statements by witness O.
- Witness O. testified that in November 2003 he and B. had gone to Astrakhan from Voronezh and had bought fish from the applicant. Later, the applicant had contacted them and said that he could supply more fish. They had gone to Astrakhan again, where B. had bought drugs from someone. At the end of the investigation of the criminal case against him and B., the police had asked them, in exchange for a more lenient sentence, to go to Astrakhan again and incite the applicant to sell them drugs. He had refused, whereas B. had agreed.
- O.’s testimony in court contradicted his earlier statements made during the pre-trial investigation and the prosecutor asked to have his pre-trial statement read out in court. The applicant did not object to this request and it was granted.
- It was apparent from O.’s pre-trial statement that he and his business partner B. had been buying fish in Astrakhan and selling it in Voronezh. In November 2003, during their stay in Astrakhan, B. had met the applicant, who had promised to help them purchase some fish. In December 2003 they had again been in Astrakhan, where they had bought heroin from the applicant and transported it to Voronezh.
(ii) Statements by police officers Av., Le., Sv. and attesting witnesses Iv. and Yu.
- Witness Av., a police officer, testified that he had taken part in the planning of the covert operation in June 2004 and had been present at the time of the applicant’s arrest and personal search. He had heard the applicant say at the time of his arrest that he had made money from selling drugs.
- Witnesses Le. and Sv., police officers from the Voronezh police department, submitted that they had taken part in B. and O.’s arrest in March 2004 after they had tried to sell drugs to an undercover police officer.
- Witness Iv. submitted that in March 2004 police had asked him to be an attesting witness during a search of B.’s apartment in Voronezh.
- Witness Yu. submitted that in March 2004 police had asked him to be an attesting witness in the covert operation.
(c) Pre-trial witness statements as to the first set of charges
- The prosecutor submitted two requests to have B. summoned as a witness; however, according to medical documents submitted to the District Court, B. could not attend the hearing because he had a serious oncological condition (cancer) and accompanying speech problems. The District Court then granted the prosecutor’s request, despite the applicant’s objections, to have B.’s pre-trial statement read out and admitted as evidence.
- Witness B. testified in his pre-trial statement that his business partner O. had introduced him to the applicant in November 2003. The applicant had agreed to be an intermediary in his business, which involved supplying fish in Voronezh. On or around 15 December 2003 B. and O. had come to Astrakhan to buy fish. The applicant, however, had not had enough fish for them. B. had serious financial difficulties so O. had suggested buying drugs from the applicant. O. had assured B. that he had an established drug distribution network in Voronezh and that he would help B. to sell drugs within three days to resolve his financial troubles. That had been the first time B. had learnt that the applicant sold drugs. On or around 18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and O. They had then transported it to Voronezh. The police had arrested them there when they had been trying to sell heroin.
- The District Court also read out and admitted pre-trial statements of five prosecution witnesses as evidence.
- Witness R. testified in his statement that in March 2004 he had organised and supervised the covert operation during which B. and O. had sold drugs to undercover officer Su.
- Witness Su. testified that he had gone undercover to buy drugs from B. and O. during the covert operation in March 2004. He described the manner in which it had been carried out.
- Attesting witnesses M., D. and Z. testified in their statements that in March 2004 the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of B. and O.
(d) Witness statements in court as to the second set of charges
- During the examination of the second set of charges against the applicant the District Court questioned three police officers (Sh., K. and Sha.) and two attesting witnesses.
- Witness Sh. submitted that in June 2005 he had taken part in the test purchase from the applicant. B. had identified the applicant as the dealer. During the covert operation he and B. had met the applicant several times in the hotel room. At their last meeting the applicant had sold Sh. about 50 grams of heroin.
- Witness K. testified that he had been responsible for monitoring the undercover operation in respect of the applicant in the summer of 2004.
- Witness Sha. testified that he had arrested the applicant immediately after the test purchase, and that he had said at the time of his arrest that he had made money from selling drugs.
- Witnesses Shi. and Ba. testified that the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of the applicant.
(e) Witness pre-trial statements as to the second set of charges
- The District Court also read out a pre-trial statement of absent witness B.
- B. testified that he had agreed to take part in the test purchase from the applicant. A police officer, Sh., had been designated as the buyer. In late May B. had called the applicant to inform him that he had already sold the drugs to a certain person, someone who was interested in buying more drugs from him, but as wished to do so in person he would come to Astrakhan. The applicant had agreed and said that he would arrange the deal.
- B. then described in detail how the covert operation had been carried out between 2 and 5 June 2004. In particular, he had called the applicant several times over those days to arrange a meeting with him. On 3 June 2004 the applicant had come to their hotel and B. had introduced him to Sh., who had asked the applicant to supply him with 2 kilograms of heroin and discussed other terms of the deal. The applicant had said that he could only get 1.2 kilograms of heroin and they had agreed to meet the following day. On 4 June 2004 the applicant had come to their hotel and said that he had contacted the dealers and that they would call him back. They had all stayed in the hotel room until the applicant had received a telephone call. The applicant told them that he would bring the heroin the next day. On 5 June 2004 the applicant had come to their hotel with about 38 grams of heroin. When Sh. had asked him about the remaining amount, the applicant had explained that he could bring more in two days. However, he had 9 grams on him for personal use so Sh. had agreed to buy that too. Sh. had handed money over to the applicant, who had said that he would go downstairs to get change. When he had left the room he had been arrested by the police.
(f) The applicant’s conviction
- On 14 October 2005 the District Court sentenced the applicant to nine years’ imprisonment, after finding him guilty of drug offences, in particular the sale of drugs to B. and O. in December 2003 and Sh. on 5 June 2004. The court admitted the following material as evidence:
(i) the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and the pre-trial statements of B., R., Su., M., D. and Z;
(ii) the statements made during trial by Sh., K., Sha., Shi. and Ba. and the pre-trial statement of B.
(iii) a record of the examination of the banknotes used to buy drugs from the applicant;
(iv) the test purchase record;
(v) the arrest record of 5 June 2004;
(vi) a transcript of the audio recording made in the course of the test purchase;
(vii) forensic chemical examination reports of substances seized at the crime scene;
(viii) a forensic examination report of the applicant’s palm prints.
- The court did not examine the forensic report of the applicant’s fingerprints or admit it as evidence.
- The forensic examination report of the applicant’s palm prints showed that the applicant had had no drug residue on his palms.
- The District Court did not use the applicant’s interrogation report of 6 June 2004 as evidence.
- In his appeal against the conviction the applicant complained, among other things, that the trial court had not ensured the presence of a key prosecution witness, B.
- On 2 March 2006 the Astrakhan Regional Court (“the Regional Court”) upheld the applicant’s conviction. It held that according to medical certificates, B. was suffering from cancer and could not speak. The trial court had therefore lawfully decided that his situation could be considered to be “other exceptional circumstances” which had prevented him from appearing at the hearing, and that his testimony could be read out in accordance with Article 281 of the Code of Criminal Procedure (see paragraph 77 below).
- Supervisory review proceedings
(a) First set of supervisory review proceedings
- On an unspecified date in 2006 the applicant applied to the Presidium of the Regional Court for a supervisory review of his conviction.
- On 29 August 2006 it examined the applicant’s case by way of supervisory review. Neither the applicant nor his counsel were present at that hearing. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006 in so far as the applicant’s actions on 5 June 2004 had been classed as a drug offence, and held that his actions should have been classed as an attempt to commit a drug offence. It upheld the remainder of the judgment of 14 October 2005.
(b) Second set of supervisory review proceedings
- On 6 March 2009 a judge of the Supreme Court of the Russian Federation (“the Supreme Court”) referred the case to the Presidium of the Supreme Court for examination on the merits, at the request of the Prosecutor General of the Russian Federation.
- On 2 April 2009 the Supreme Court quashed the decision of 29 August 2006 by way of supervisory review, on the grounds that the applicant had not been duly informed of the date of the hearing, and had therefore been unable to attend. It remitted the case to the Presidium of the Regional Court for fresh examination.
(c) Third set of supervisory review proceedings
- On 19 May 2009 the applicant requested the Presidium of the Regional Court (“the Presidium”) to provide him with legal aid counsel for the hearing before it. He claimed that he had insufficient means to pay for a lawyer.
- On 2 June 2009 the Presidium examined the criminal case against the applicant by way of supervisory review. He was present at the hearing and was assisted by legal aid counsel K.
- The applicant objected to the panel of the Presidium on the grounds that it had already examined his case by way of supervisory review on 29 August 2006. The Presidium dismissed this objection, finding that the decision of 29 August 2006 had been quashed on procedural grounds. There was therefore no reason to exclude these judges from the new examination of the case.
- The applicant submitted on the merits of the case that at the time of his arrest he had not been informed of his rights or provided with a lawyer and that the record of his arrest had been forged. He also had not received a copy of the arrest record or been able to question key prosecution witness B. at the trial.
- Having examined the case file, the Presidium found that the applicant’s grounds of appeal were unsubstantiated. In particular, it held that the arrest record of 5 June 2004 had been duly authenticated and signed by the applicant, who had been informed of his rights, including the right to be represented by counsel. He did not however request that counsel be instructed or make any comments in the record. The Presidium also noted that statements by prosecution witnesses had been read out at trial in accordance with the law.
- The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006, held that the applicant’s actions on 5 June 2004 should have been classed as an attempt to commit a drug offence, and upheld the remainder of the judgment of 14 October 2005.
- By a decision issued on the same day the Presidium ordered the recovery of counsel’s fees in the amount of 1,485.85 Russian roubles (RUB) (about 30 euros (EUR)) from the applicant for the representation in the supervisory review proceedings.
- Conditions of detention
- In the course of the criminal proceedings the applicant was detained in remand prison IZ-30/1 in Astrakhan during the following periods:
(a) between 6 and 9 June 2004;
(b) between 9 July and 16 December 2004;
(c) between 28 December 2004 and 11 April 2006; and
(d) between 27 February and 26 March 2008.
- During the first three periods the applicant was detained in different cells. All of them were overcrowded and infested with insects. They measured about 25 square metres each and contained six bunk beds. He did not have an individual sleeping place and inmates had to take turns to sleep. Some cells were not equipped with ventilation system, while in others it was not working. The electric lighting was always on. The toilet was not separated from the rest of the cells.
- During his last period of detention the applicant was detained in cell 5 located in the basement. He was not provided with any bedding or cooking utensils. Remand prison officers told him that he should have brought his own bedding. The cell was very cold and damp. Since he did not have any bedding he was obliged to sleep in his clothes. The windows were closed all the time and let in no daylight. The cell was never ventilated. The toilet was in the corner of the cell and offered no privacy. The dining table was very close to the toilet. The cell was infested with insects. Detainees could take a fifteen-minute shower once a week.
- The applicant’s correspondence with the Court
- On an unspecified date the applicant was transferred to correctional colony IK-2 in the Astrakhan region to serve his sentence. It appears that in 2010 he was transferred to correctional colony IK-6, also in the Astrakhan region.
- The applicant submitted that the authorities of IK-2 and IK-6 had opened and read a number of the Court’s letters to him, in particular one dated 13 September 2006 acknowledging receipt of his application and giving him further information on the conduct of the proceedings before the Court, and others dated 21 November 2006, 15 January, 20 February, 22 and 29 May 2007, and 26 February 2008. The applicant provided the Court with copies of these letters. All of them had been stamped by the colony authorities.
- The applicant also submitted that the colony authorities had delayed in sending the Court’s letters to him.
- The Government claimed that during his detention in IK-2 and IK-6 the applicant had sent one letter to the Court and had received 11 letters from the Court. The receipt and dispatch of letters had been properly recorded in the prison log book. Some letters addressed to the applicant had been opened for registration purposes only. They had not been censored and had been handed over to the applicant in their entirety. One letter had been forwarded to the applicant after a four-day delay due to an omission by one of the prison employees who had been duly reprimanded in the intervening period.
- Relevant domestic law
- Pre-trial Detention Act (Federal Law no. 103-FZ of 15 July 1995)
- Section 22 of the Detention of Suspects Act of 15 July 1995 provides that detainees should have at least 4 square metres of personal space in their cell. Section 23 provides that they should be kept in conditions which satisfy sanitary and hygiene requirements, provided with an individual sleeping place and given bedding, tableware and toiletries.
- Criminal Procedure Code of 18 December 2001, in force since 1 July 2002 (the CCrP)
- Legal representation
- Article 49 § 3 (3) provides that defence counsel participates in criminal proceedings from the moment of the person’s arrest in accordance with Article 91 or 92 of the CCrP.
- Article 50 § 1 provides that defence counsel should be called by a suspect or an accused, his legal representative or other persons upon his request or with the consent of the suspect or the accused.
- Article 50 § 2, as in force at the material time, provided that an investigator, prosecutor or court should provide a suspect or an accused with counsel upon his request.
- Article 51 § 1 of the CCrP provides for mandatory legal representation in criminal judicial proceedings if, inter alia, the defendant has not waived his right to legal representation in writing.
- Grounds for arrest
- Article 91 § 2 provides that a person can be arrested on suspicion of having committed an offence punishable by a term of imprisonment if, inter alia, victims and eyewitnesses have indicated that that person has committed a criminal offence.
- Taking of samples for comparative analysis
- Article 202 § 1 as in force at the material time, provided that an investigator could obtain handwriting or other samples for comparative analysis from a suspect as evidence if it was necessary to determine whether any traces had been left at a particular place.
- Litigation costs
- Article 131 of the CCrP provides that litigation costs are to be borne by the parties to the proceedings or the State. This includes lawyer’s fees if the lawyer has been appointed by the State. Article 132 provides that litigation costs have to be paid by the convicted person or the State. The courts have the power to order the convicted person to pay costs, with the exception of lawyer’s fees if the court had previously rejected the defendant’s waiver of counsel and the lawyer has been appointed by the State. The State is liable for costs if the person concerned is indigent. The court can also absolve the person concerned from the liability for costs or reduce their amount.
- Absence of witness
- Article 281 of the CCrP, as in force at the material time, provided that where a victim or witness did not appear at the hearing, the court could decide, at the request of a party to the proceedings or on its own initiative, to read out the testimony previously given by the victim or witness during the preliminary investigation. It could do so if the victim or witness had died or could not appear at the hearing because of serious illness, if he or she was a foreign national and refused to appear before the court, and in cases of natural disaster or if other exceptional circumstances prevented him or her from appearing.
- Appeals against orders by the Presidium of the highest regional court
- Article 403 § 2, as in force at the material time, provided that an appeal against an order issued by the Presidium of the highest regional court could be lodged with the Supreme Court of Russia in supervisory review proceedings.
- Code of Execution of Sentences (CES)
- Article 91 of CES as in force at the material time, expressly prohibited the monitoring of correspondence between an inmate and the Court.